In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence. (U.S. Constitution, Sixth Amendment.)

The last Supreme Court ruling on this appears to be Gideon v. Wainwright, which applies the Sixth Amendment "right to counsel" for indigent defendants to the states. Apparently even that right is still under contention: many jurisdictions impose fees on defendants for the use of public counsel, regardless of their (in)ability to pay.

I'm still confounded by the reality that an American of any means could be required to pay for counsel in defense against criminal charges. Since, AFAIK, there is no way for an exonerated defendant to recoup the costs of his criminal defense, doesn't this amount to an "unconstitutional taking" of property?

I.e., does the present system really say, "You are presumed innocent, and you have the right to counsel in defense of that assertion, but you have to spend down to your last dollar to assert that right?"

If true, I guess the "American" solution might be something like legal insurance, but the principle sounds terrible.

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    Beside the point, but still: I was recently surprised that some jurisdictions apparently have those found not guilty of traffic violations pay the court costs associated with their acquittal. I assume there is a reason not to institute a blanket policy that those acquitted of crimes are always reimbursed (either for costs, or costs and time, or maybe even costs, time and damages?) but I'm too naive to imagine what it is (unless my cynicism is justified and it's the money). – Patrick87 Oct 2 '15 at 18:30
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    You have the right to life, liberty and the pursuit of happiness: none of these are free. – Dale M Oct 3 '15 at 11:39
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    @DaleM - The Constitution actually enumerates quite a few more rights than that. Among them, as I understand it, is the right to not be deprived of property without due process. If the "due process" itself deprives you of property that seems like a glaring defect, for which this question seeks an explanation. E.g., if the state accuses you of murder, and ultimately concludes it was mistaken, it has already taken devastating amounts of your time, reputation, and circumstances that it can't restore. It has also taken your money, but at least that it could restore. – feetwet Oct 3 '15 at 15:28
  • I wasn't aware of this. Perhaps the distinction in the article is that people are not paying for counsel; they're paying a fee to apply for counsel. Sounds shaky, but maybe that's how it's rationalized...as a "minor" court fee. – Pat W. Nov 24 '15 at 21:44
  • If I am acquitted of traffic offenses and am told to pay any costs for anything, I'm telling them to get lost. The city of Dallas once asked me to pay a 10 dollar "dismissal fee" after a verdict of not guilty. I walked out of the court and didn't pay a dime. Nothing happened. This was 20 years ago. – mark b Jan 30 '17 at 22:03

The question has a false premise: the law does does not require defendants to pay for counsel. The right to counsel can be waived. However, the fact that court-appointed counsel are provided only to indigent defendants does seem at odds with the text of the Sixth Amendment. I will explain why the right is limited by reviewing the cases and historical background.

Original meaning of the Sixth Amendment

Part of the answer is that the Sixth Amendment was (probably) not originally intended to create a right to court-appointed counsel at all. Rather, it reversed the historical rule that people accused of felonies were denied representation even if they could afford it. See Powell v. Alabama, 287 U.S. 45 (1932), at pp 60–69:

Originally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest ... Historically and in practice, in our own country, at least, [the right to a hearing] has always included the right to the aid of counsel when desired and provided by the party asserting the right.

See also Scott v. Illinois, 440 U.S. 367 (1979), at p 370:

There is considerable doubt that the Sixth Amendment itself, as originally drafted by the Framers of the Bill of Rights, contemplated any guarantee other than the right of an accused in a criminal prosecution in a federal court to employ a lawyer to assist in his defense.

Basis of the modern rule

As noted in the question, Gideon v. Wainwright, 372 U.S. 335 (1963) is the leading case on this area of law today, but the modern rule was more precisely and recently stated in Scott, at pp 373–374:

We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.

Note that the rule is not derived directly from the Sixth Amendment (at least insofar as it applies to the States). The Bill of Rights did not apply to the States before the Civil War: Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833). After the Reconstruction Amendments, through the process of incorporation, the Supreme Court began to accept that the Fourteenth Amendment's Due Process Clause could entrench substantive rights against the States.

The modern rule recognises that any person who is unable to afford a lawyer and who is sentenced to imprisonment without legal representation has been deprived of their liberty without due process of law. It does not establish an absolute right to legal representation.

In Scott, after noting that the modern rule went beyond what was guaranteed by the text of the Sixth Amendment (understood in its historical context), the Court held that it did not extend to an indigent defendant who was fined for a petty theft. At p 373, the Court offered the following practical justification for limiting the rule:

[W]e believe that the central premise of Argersinger – that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment – is eminently sound, and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. Argersinger has proved reasonably workable, whereas any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States.

An unconstitutional taking?

The Fifth Amendment provides that private property shall not be taken for public use without just compensation. The concept of "taking for public use" is another one that's hard to pin down at the margins, but there's a good summary of the cases available in the section on When Property is Taken in the Constitution Annotated:

The older cases proceeded on the basis that the requirement of just compensation for property taken for public use referred only to "direct appropriation, and not to consequential injuries resulting from the exercise of lawful power." Accordingly, a variety of consequential injuries were held not to constitute takings ... Nor was government held liable for the extra expense which the property owner must obligate in order to ward off the consequence of the governmental action ... But the Court also decided long ago that land can be "taken" in the constitutional sense by physical invasion or occupation by the government, as occurs when the government floods land permanently or recurrently. A later formulation was that "[p]roperty is taken in the constitutional sense when inroads are made upon an owner's use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time."

I am not aware of any case in which it was argued that the need to pay for one's own legal representation amounted to a taking for public use. It is certainly a far cry from the compulsory acquisition of land. But perhaps in a case where the defendant is acquitted, or proven innocent, a takings argument could be run by analogy with the cases dealing with innocent people who suffered loss as a result of police execution of search warrants. See Everyone Benefits, Everyone Pays: Does the Fifth Amendment Mandate Compensation When Property is Damaged During the Course of Police Activities? 9 William & Mary Bill of Rights Journal 277 (2000) for more about these cases.

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  • I hadn't thought of expense a property owner may have to deal with to fight an attempted government taking. Food for thought! Excellent answer, by the way! – A.fm. Feb 4 '18 at 7:11
  • Yes, excellent answer! And if you have digested your last linked law review, you might be able to provide good answers to my questions along those lines law.stackexchange.com/q/23275/10 and law.stackexchange.com/q/11463/10 – feetwet Feb 4 '18 at 19:35

In criminal cases, defendants who do not make bond will be appointed a public defender automatically. The defendant does not pay for the public defender. Instead, their salary is payed for by taxes -- or something like that depending on where they are. If the defendant does make bond, they have to fill out a form which a judge will review and -- taking into account factors like income, etc. -- choose whether or not to assign you a public defender.

In civil cases, defendants can apply for a public defender but usually they are turned down. This is not because of the nature of the case, but instead because most people won't sue someone who doesn't even have enough money to get a lawyer, they sue the people who have tons of money. And, again, if you have tons of money, you probably won't be appointed a public defender. Even if you are, you probably will get your own lawyer because public defenders are usually very overloaded with cases and are not able to put a lot of time and attention into one specific case.

So, there is a little unfairness, but when you think about it, the people who can't get lawyers, usually are appointed ones and the people who can get lawyers buy their own. That seems fair enough. Right? Well, there is another problem to address: most of the public defenders, like I said before, have little to no time to focus on specific cases. Often, they will just get their defendant to plea out so that they can move on to another case. This means that a poor defendant almost always gets worse representation than a rich one.

It's not the defenders fault, they don't get paid by the hour and they have too much work to reasonably do. The decision to get a plea deal or even ignore a case is not out of evil on their part, it's out of stress. Instead, blame can be put on the system for not effectively paying for and sustaining a public defending structure. That's something to think about.

As your evidence suggests, it isn't really the constitutionality -- they are still "providing" lawyers -- it is more just wrong. It is something that will only change with another, more specific supreme court ruling.

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    While this answer reflects common understanding, part of my question points out that the reality is that even indigent defendants are in many cases being forced to pay costs of their "public" defense. There is also a good deal of research addressing the question of whether private defense is more effective. In some cases it appears that it is not. – feetwet Feb 15 '16 at 20:10
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    Gideon v. Wainwright allows a public defender if the defendant -- unable to afford their own council -- wants one. The basis for courts to or to not appoint council relies on whether or not the defendant can afford their own. That is where there is some leeway for judges. Depending on where one is, what the minimum wage there is, how much a private defender would cost there are important factors they would consider. However, sometime they get it wrong. That is allowed for under the law because if a judge thinks that someone can or cannot afford an attorney, that is what stands. – Emet Feb 15 '16 at 21:26
  • Also, I do not mean to imply that public defenders are any worse than private defenders. In fact, private defenders have a money incentive to drag out the case and sometimes do not hold the interest of their client in mind. While it might be prejudicial of me to say this, I'd prefer a public defender to represent me -- in almost all cases -- because they didn't get into the profession for the money, they did it to help people. – Emet Feb 15 '16 at 21:27
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    It's an interesting that I don't think I can fully answer. I think it's worth noting that we should focus on the Supreme Court's interpretation of the Constitution not our own which -- for states at least -- only gives the right to counsel in felony cases. Someone should never be found guilty unless they have a lawyer (if they want one). But I think that, to answer your question fully, one would need insight into what the Supreme Court was actually thinking as they ruled on Gideon v Wainwright. I'd agree with you that it seems unconstitutional to make a defendant pay, but I'm not SCOTUS. – Emet Feb 15 '16 at 22:36
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    in Texas if the criminal offense is not a jail-able offense (class C misdemeanors) they won't provide you a public defender. – mark b Jan 30 '17 at 22:05

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